United States District Court, D. Colorado
ORDER ADOPTING THE JUNE 1, 2018 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
William J. Martínez, United States District Judge.
Elizabeth Fedynich and Nicole Fedynich (jointly,
“Plaintiffs”), proceeding pro se, bring
claims against Defendant The Inn Between of Longmont
(“Defendant”), alleging violations of the Federal
Housing Act (FHA) and breach of contract. (ECF No. 16
(“Complaint”).) Defendant moved to dismiss for
failure to state a claim. (ECF No. 23
(“Motion”).) United States Magistrate Judge Scott
T. Varholak filed a Report and Recommendation recommending
that Defendant's Motion be granted with respect to
Plaintiff's breach of contract claim and denied with
respect to Plaintiff's FHA claims. (ECF No. 49
(“Recommendation”).) Plaintiff filed an Objection
to the Recommendation. (ECF No. 54
(“Objection”).) Defendant responded to
Plaintiff's Objection (“Response”) (ECF No.
58), but did not timely file an Objection of its
For the reasons set forth below, the Court overrules
Plaintiff's Objection and adopts Judge Varholask's
Recommendation in its entirety.
STANDARD OF REVIEW
magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires
that the district court judge “determine de
novo any part of the magistrate judge's
[recommendation] that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3). In conducting its review, “[t]he
district court judge may accept, reject, or modify the
recommendation; receive further evidence; or return the
matter to the magistrate judge with instructions.”
Id. An objection is proper if it is filed within
fourteen days of the magistrate judge's recommendations
and is specific enough to enable the “district judge to
focus attention on those issues-factual and legal-that are at
the heart of the parties' dispute.” United
States v. 2121 East 30th Street, 73 F.3d 1057, 1059
(10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S.
140, 147 (1985)). “When no timely objection is filed,
the court need only satisfy itself that there is no clear
error on the face of the record in order to accept the
recommendation.” Fed.R.Civ.P. 72(b) advisory
committee's note; see also Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of
timely objection, the district court may review a
magistrate's report under any standard it deems
Federal Rule of Civil Procedure 12(b)(6), a defendant may
move to dismiss a claim for “failure to state a claim
upon which relief can be granted.” In evaluating such a
motion, a court must “assume the truth of the
plaintiff's well-pleaded factual allegations and view
them in the light most favorable to the plaintiff.”
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007). The dispositive inquiry is
“whether the complaint contains ‘enough facts to
state a claim to relief that is plausible on its
face.'” Id. (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion
to dismiss “is a harsh remedy which must be cautiously
studied, not only to effectuate the spirit of the liberal
rules of pleading but also to protect the interests of
justice.” Dias v. City & Cnty. of Denver,
567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation
marks omitted). “Thus, ‘a well-pleaded complaint
may proceed even if it strikes a savvy judge that actual
proof of those facts is improbable, and that a recovery is
very remote and unlikely.'” Id. (quoting
Twombly, 550 U.S. at 556).
the Court is mindful of Plaintiffs' pro se
status, and accordingly reads his pleadings and filings
liberally. Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Trackwell v. United States Gov't, 472
F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot
act as advocate for Plaintiffs, who still must comply with
the fundamental requirements of the Federal Rules of Civil
Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991); see also Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1188 (10th Cir. 2003).
party objects to the recitation of facts set forth by Judge
Varholak in the June 1, 2018 Recommendation. (ECF No. 49 at
2-6.) Accordingly, the Court adopts and incorporates Section
I of that Recommendation as if set forth herein.
Defendant is a non-profit agency that manages affordable
housing units. (ECF No. 23 at 1.) Plaintiffs leased one of
these units from Defendant and moved in on June 21, 2017.
(ECF No. 16 at 8.) Prior to moving in, Plaintiffs informed
Defendant that they both suffered from chronic asthma,
pleurisy, and multiple chemical sensitivity, and that
cigarette smoke was very harmful to their health.
(Id. at 7.) Defendant has a policy that prohibits
smoking inside the apartments and assured Plaintiff that it
“would take action against anyone who smoked indoors in
violation of the lease.” (Id. at 8.) The lease
agreement also prohibits the sale, use, or cultivation of
marijuana on Defendant's properties. (ECF No. 23-2 at 5.)
their first evening living in the apartment, Plaintiffs noted
that “the apartment reeked heavily of cigarette
smoke.” (ECF No. 16 at 8 (emphasis omitted).)
Plaintiffs notified Timothy Rakow (“Rakow”),
Defendant's Associate Director, by e-mail on June 22,
2017. (Id.) Defendant contacted residents about the
indoor smoking policy and explained about Plaintiffs'
respiratory issues. (Id.) That evening Plaintiffs
reported that the apartment smelled fresh and residents were
smoking outside. (Id.) However, on June 23,
Plaintiffs contacted Rakow because the cigarette smell had
returned and residents were not smoking outside.
(Id.) The next day, June 24, Plaintiffs reported
smelling marijuana smoke in the building. (Id.)
Plaintiffs also personally informed their neighbor that the
smell of marijuana makes them extremely nauseous.
(Id.) Plaintiffs' neighbor apologized and
explained that she had a medical marijuana card and that
Defendant knew she smoked marijuana, but that she would only
smoke in the alley in the future. (Id.) Plaintiffs
allege that Defendant began to ignore all of Plaintiffs'
complaints. (Id. at 9.) Plaintiffs also complained
to Rakow about their neighbors' use of ozone machines and
air fresheners which irritated their lungs, eyes, and hearts.
(Id. at 10.) Rakow informed Plaintiffs that he was
“going to take [n]o further action” with regards
to their complaints. (Id. at 9.)
claim that they were diagnosed with bronchitis and needed
breathing treatments at a hospital on two consecutive days.
(Id. at 10.) Plaintiffs further allege that
Defendant's inaction caused Plaintiffs other injuries,
including: anorexia, dry eyes, dry sinuses, PTSD, loss of
financial services, and elevated blood pressure, among many
other ailments. (Id. at 20.) Additionally,
Plaintiffs claim that their service animal suffered three
grand mal seizures and passed away due to exposure to
methamphetamine in the apartment. (ECF No. 34 at 4.)
requested that Defendant install specialized smoke detectors
that could positively identify cigarette and marijuana use,
but Defendant refused. (ECF No. 16 at 12.) In response,
Plaintiffs began speaking to their neighbors themselves and
frequently called the police and fire departments to
investigate their neighbors' apartments. (ECF No. 23 at
1.) Longmont Police reported smelling sweet detergent, cat
urine, air fresheners, scented candles, and patchouli. (ECF
No. 34 at 4.) Plaintiffs claim that these are the scents that
they are sensitive to, and thus their complaints to police
were justified. (Id.)
13, 2017, Defendant's Executive Director, David Bitler
(“Bitler”), e-mailed Plaintiffs explaining that
Plaintiffs' phone calls to Defendant and conversations
with other residents were bordering on harassment and needed
to cease immediately. (ECF No. 49 at 5.) Bitler's e-mail
also explained that “[i]f a resident is caught smoking
in violation of the lease [Defendant] will deal with that
resident but [Defendant] will no longer respond to
[Plaintiffs'] multiple daily complaints regarding
smelling smoke.” (Id.) Moreover, in the e-mail
Bitler stated that given how unhappy Plaintiffs seemed,
Defendant will allow them to rescind their lease.
(Id.) He also warned Plaintiffs that if their
behavior continues, they may be at risk of losing their
August 21, 2017, Defendant filed a Complaint in Forcible
Entry and Detainer in Boulder County Court (the “FED
Action”). (Id.) In the FED Action, Defendant
sought to evict Plaintiffs, claiming that “Plaintiffs
have repeatedly and relentlessly disturbed, harassed, and
threatened other neighbor tenants in the complex.”
(Id.) Plaintiff filed counterclaims in that action
on August 31, 2017. (Id.) At a January 19, 2018
hearing, Plaintiffs and Defendant reached a stipulation with
respect to Defendant's eviction claim, which required
Plaintiffs to vacate the premises by 5:00 p.m. that day.
(Id. at 6.) Plaintiffs' counterclaims remain
pending in that action. (Id.)
Plaintiffs commenced this action on August 11, 2017.
(Id.) Plaintiffs raise four causes of action in
their Complaint: (1) Failure to Accommodate in violation of
the FHA (claim one) (ECF No. 16 at 10), (2) retaliation in
violation of the FHA (claim two) (id. at 14), (3)
violation of Plaintiff's privacy rights (claim three)
(id. at 17), and breach of contract (claim four)
(id. at 18). Senior United States District Judge
Lewis T. Babcock dismissed claim three as legally frivolous,
and ordered the remaining claims drawn to a presiding judge.
(ECF No. 17 at 4-6.)
remaining three claims are for failure to accommodate in
violation of the FHA (claim one), retaliation in violation of
the FHA (claim two), and breach of contract (claim four).
Defendant filed their Motion on February 27, 2018, arguing
that all of Plaintiffs' remaining claims should be
dismissed for failure to state a claim. (ECF No. 23.) In the
alternative, Defendant asks the Court to stay any claims that
survive dismissal pending resolution of Plaintiffs'
counterclaims in the FED Action.
Varholak recommended denying Defendant's Motion with
respect to claims one and two (Plaintiffs' FHA claims),
and granting it with respect to claim four (Plaintiffs'
breach of contract claim). (ECF No. 49.) Judge Varholak also
denied Defendant's motion to stay proceedings.
(Id. at 16.) Plaintiffs filed an Objection to Judge
Varholak's recommended denial of claim four. (ECF No.
34.) Defendant responded to Plaintiff's Objection, but
did not timely file their own objections to Judge
Varholak's Recommendation. (ECF No. 58). Thus, the Court
analyzes the portions of Judge Varholak's Recommendation
pertaining to Plaintiff's ...